Study On The Criminal Prosecutorial Protest

Criminal prosecutorial protest, in the current context of China, refers to the legal action of the people’s litigation activities that appeals to the judicial organ to put a case on retrial or remedy by law where it finds error in the judgment or the ruling made by the people’s court. What criminal prosecutorial protest named are different in different countries such as British、the United states、France and Japan for their respective legal traditions and litigation structures. Criminal prosecutorial protest system came into being when criminal prosecution system, criminal appeal system in particular, developed to a certain stage, and evolved together with criminal prosecution system. The Chinese criminal prosecutorial protest system has played an important role in the judicial system since it was born. But the after-trial procedure including protest is less focused on by the theoretical and practical community compared with pretrial procedure and trial procedure, and fewer valuable research results have come about, which leads to the long-term unresolved problems in the criminal prosecutorial protest system both in theory and practice. As China is in the adjustment period in social structure, the need of social development will be reflected in criminal prosecution and lead to the adjustment in criminal prosecution procedures. The study of the function of criminal prosecutorial protest system and the way of improvement has positive theoretical significance, practical significance and social significance.The introduction briefs on the birth and evolution of criminal prosecutorial protest system, the problems this system confronts and the importance of researches in this area. Besides the introduction, this paper contains six chapters.Chapter one describes the function of criminal prosecutorial protest system. The function of the system implies its effect and efficacy, and is the inherent property of the system. The function of criminal prosecutorial protest system lies in protection of substantive justice, protection of procedural fairness and legal promotion. The protection of substantive justice is mainly reflected in the substantive error correction and right relief. The protection of procedural fairness is mainly reflected in balance of power and protection of due process. The legal promotion is mainly reflected in unified application of law and legal development. The substantive error correction is mainly reflected in the procurator’protest in the court’s first trial judgment, procedure judgment and retrial. And right relief and protection of procedural fairness are the fundamental function of judicial system and also fundamental function of criminal prosecutorial protest system, yet with specific meaning in the criminal prosecutorial protest link. The function position affects the object, reason or procedure modes of criminal prosecutorial protest.Chapter two describes the object of criminal prosecutorial protest. The object of criminal prosecutorial protest refers to the target and content of the protest by the procuratorial organs, or in other words, what is protested. The target of protest by procuratorial organs in different countries is mainly the court judgment, though of various forms. The judgment, as the target of criminal prosecutorial protest, can be final judgment and intervening judgment, or substantial judgment and procedural judgment. The protest type taking final judgment as the main object is called final judgment type, while the protest type taking interlocutory judgment as the main object is called interlocutory judgment type. The classification of substantial and procedure judgment and final and intervening judgment is not in the same logical system. What’s more, the classification of substantial and procedure judgment is not clear. But this classification is of great significance for us to understand criminal prosecutorial protest, in particular for the reform and improvement of the procedures in the criminal prosecution of China.Chapter three discusses the reason of criminal prosecutorial protest. The reason of criminal prosecutorial protest refers to the grounds and conditions for proposing criminal prosecutorial protest, or why the protest is made. The circumstances and reasons for overturning the court judgment and even sacrificing the stability of judgment could tell in the best way the function of criminal prosecutorial protest. Countries stipulate much differently in law about the reason of protest, and the difference is bigger than the object of protest. According to the judgment effectiveness of the protest object, the reason of protest can be targeted at not effective judgment and effective judgment. According to the judicial level of the court, the reason of protest can be classified as targeted at first trial judgment, second trial judgment and retrial judgment. The criminal prosecutorial protest laws in different countries usually do not impose special limitations on the procuratorial organs’protest reason targeted at not effective judgment of first trial cases, which shows that the laws emphasize on the function of error correction. But countries are usually strict with the procuratorial organs’ protest reason targeted at not effective judgment of second trial cases, and confine that to where the application law for lower-level court judgment violates against the law, which demonstrates that the procedures emphasize on the function of unified application of law. And countries make much stricter restrictions on the procuratorial organs’protest reason for retrial request, and try to avoid denying the effectiveness of existing judgment. Based on the protest reason being fact-based or law-based, the reason can be fact reasons or legal reasons. China has not made fine differentiation of the protest reasons mentioned above, which does not help realize the plural functions of criminal prosecutorial protest. Of the different classifications, to differentiate fact-based and law-based reasons according to different judgment effectiveness is helpful for the Chinese criminal prosecutorial protest system to highlight the function of unified application of law and legal development.Chapter four talks about the procedure of criminal prosecutorial protest. Criminal prosecutorial protest needs to be conducted through procedures and supported by procedures, and relies on procedures to show its function. This chapter studies how criminal prosecutorial protest is carried out in practice. The discussion is in three aspects. The first is the pretrial review. The second is review during the trial. There are usually the differentiation of limited and full review, panel hearing and en banc proceedings, trial of law and trial of fact, trial in court and trial by document in many countries. The third is post-trial procedure, which includes case-affected procedure type and system-affected procedure type. From the perspective of system-affected procedure type, the prosecutorial protest in many countries takes the unified application of law and legal development into consideration while correcting wrong cases.Chapter five is on Characteristics and defects of criminal prosecutorial protest system of China. The object type of China is final judgment type, but compared with other countries of the same type, China stresses more on the result of judgment and less on the process and procedures, which points out the direction of improvement. Reason of criminal prosecutorial protest of China is not finely divided in all respects, and this is not conducive to the functional classification and overall functioning of the system. The pretrial procedure of China is procuratorial review type. The proceedings of criminal prosecutorial protest in China are basically full review, panel hearing, trial of fact and trial in court. The lack of fine procedure classification is not good to economic litigation and will not help demonstrate the function of unified application of law and legal development. The post-trial procedure of China stresses more on the case-affected procedure type and less on the system-affected procedure, and this is not conducive to the function of legal promotion.Chapter six talks about the perfection of criminal prosecutorial protest system of China. This article argues that the function of criminal prosecutorial protest system should be correctly positioned, and the multiple functions should be exerted tunefully. Trial procedures as the object of criminal prosecutorial protest should be established independently in the law. The perfection of reason of criminal prosecutorial protest system includes independent of illegal procedure reason, differentiation of factual reason from legal reason and differentiation of for defendant from against defendant, etc. The perfection of trial procedure depends on strengthening the pretrial court review, improving full review, and perfecting full trial, trial of law and written trial. The perfection of post-trial procedure is mainly pointed to the perfection of system-affected procedure.On this basis, the article points out the direction of legal perfection of criminal prosecutorial protest of China, and puts forward concrete legislation revision suggestions in five aspects for resolving some major fundamental problems.